"There Can't Be Any Authoritarian Regime Possible In The Country": Madras High Court Disapproves Sec.144 CrPC Prohibitory Order In Puducherry

The first Division Bench, comprising Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy, asked the Election Commission to issue a clarification that "prohibit the unlawful assembly & movement" wouldn't stand in the way of citizens going about their normal business and chores.

Importantly, without setting aside the Section 144 order in its entirety, it was made clear that the prohibition of unlawful assembly and movement in terms of the relevant order wouldn't affect the usual life of citizens.

However, the Court directed that COVID protocol must be maintained at all times, including social distancing and wearing of a mask.

The background of the Case

A Puducherry official belonging to a national level political party [CPI(M)] instituted the instant public interest litigation, challenging Section 144 order passed by the District Magistrate in Puducherry.

It was alleged that the order dated 22^nd March, 2021 was, made public only on April 1, 2021 and would come into force from 7 pm today (04^th April).

It was stated that nothing in the relevant order suggested any unrest or anything untoward or even the apprehension of anything unlawful for a clampdown to be imposed.

It was submitted that since this is a free country, the citizens could go about their usual chores as they choose and the election day, when they exercise their most basic democratic right, is no time to curb their right to move about freely or do other things as they choose.

Importantly, the petitioner submitted that the result of this order would be that only the committed voter who will step out to vote as the ordinary voter may be led to believe that there is a possibility of trouble or violence and it may be better to not step out, even to vote.

On the other hand, the Election Commission justified the imposition of Section 144 Order stating that the Order had been imposed throughout Puducherry in every general election since 2014

Court's observations

At the outset, the Court remarked,

"Thankfully, this country allows expansive freedom to its citizens and, as the Constitution provides, there cannot be any authoritarian regime possible in the country nor any regimentation of the citizens or their lives."

The Court also opined that due care and caution must be exercised to ensure that the restrictions are not unreasonable or suffocating and further, the Court desisted the 'unreasoned order', which was prepared 10 or 15 days in advance and produced a day or two before it became effective.

However, the Court added that sometimes, for the purpose of maintaining law and order and in the public interest, certain restrictions may be imposed, but such restrictions have always to be reasonable, proportional to the anticipated problem and the decision in such regard is always justiciable.

The Court also observed,

"Every citizen in a free country can do anything lawful that the citizen chooses and even the slightest of restriction on the citizens' movement has to be justified."

In the present case, the Court noted,

"The impugned notice of March 22, 2021 is singularly lacking in indicating any cogent reason for imposing restrictions on citizens' movement and how citizens may choose to go about their business."

The Court also disapproved of the 'blanket prohibitory order' and said that merely because it had been imposed one or two previous occasions, the same could not be justified.

"The issuance of a supercilious prohibitory order 2021 on the ruse that it would lead to smooth conduct of the election cannot pass muster without there being any justifiable basis therefore", added the Court.

Lastly, noting that EC's clarification that the prohibition should not be regarded as a blanket prohibition of movement or assembly but confined to the specific areas, the Court observed that

"It needs to be reiterated that the relevant order will be strictly restricted only to the prohibition of 'unlawful assembly & movement, holding of public meetings, carrying of weapons, sticks, banners, placards etc., by any person and ... shouting of slogans and using of Loud Speakers and acting in any manner detrimental to public peace and tranquility ...' In a sense, it is unnecessary to issue an order prohibiting unlawful assembly, since such an assembly, by definition, is illegal."

Case title - R.Rajangam v. Union Territory of Puducherry and others [W.P.No.8980 of 2021]

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